United States District Court, D. Nebraska
MEMORANDUM AND ORDER
R. Zwart United States Magistrate Judge.
following motions are pending before the court:
• Plaintiff s motion to compel, (Filing No.
• Plaintiff s motion to substitute relief sought in the
motion to compel, (Filing No. 43); and
• Plaintiff s motion to allow a brief in response to
Defendant's sur-reply regarding Plaintiffs motion to
compel. (Filing No. 44).
reasons discussed below, Plaintiffs motion to compel will be
granted in part and denied in part, and Plaintiff s motion to
substitute and motion to file will be granted.
complaint alleges she was subjected to sexual and
gender-based harassment while working for the Defendant.
(Filing No. 15 at CM/ECF p. 2). Plaintiff claims the
harassment caused her extreme emotional distress and other
psychological conditions. She requests an award of damages.
(Filing No. 15 at CM/ECF p. 3). On November 24,
2015, the parties filed their Rule 26(f) Report of the
Parties' Planning Conference. (Filing No. 8). In
accordance with the report, the court entered its Final
Progression Order and set a May 2, 2016 deadline for
designating experts. (Filing No. 9).
of 2016, Defendant requested a medical examination of
Plaintiff by Dr. Bruce Gutnik. Sometime after the
examination, Defendant clarified that Gutnik was a consulting
expert and would not be preparing a report. (Filing No.
36 at CM/ECF p. 1). Counsel for the parties engaged in
discussions regarding whether Plaintiff was entitled to
depose Gutnik: They were unable to reach agreement.
August 26, 2016, Plaintiff filed her motion to compel the
deposition of Gutnik. (Filing No. 37). In her reply
brief, and in her motion to substitute relief, Plaintiff
withdrew her request to depose, and instead requests an order
compelling Defendant to produce a written report of
Gutnik's examination findings. (Filing No. 41 at
CM/ECF p. 1); Filing No. 43). Therefore, the
court denies Plaintiff's motion to compel Gutnik's
deposition as moot, but will instead consider the substituted
and other types of relief requested in Plaintiff's motion
to compel. The remaining issues are whether Plaintiff is
entitled to an order requiring the creation and production of
an examination report from Gutnik, and whether
Plaintiff's deadline to designate experts should be
extended. (See Filing No. 36).
additionally filed a motion to file a brief in response to
Defendant's sur-reply regarding the motion to compel and
attached the proposed brief to the motion. (Filing No.
44). The court grants this motion and the undersigned
has considered the attached brief in ruling on the pending
argues that after submitting to a physical examination by
Defendant's expert, Gutnik, under Federal Civil
Procedure Rules 26 and 35(b), Gutnik must
produce a written report and provide a copy to Plaintiff upon
Rule 35 governs examinations agreed to by parties and
provides that after examinations, The party who moved for the
examination must, on request, deliver to the requester a copy
of the examiner's report, together with like reports of
all earlier examinations of the same condition. The request
may be made by the ...